10. sentencing and punishment

What is the definition of Intentional Infliction of Pain in the context of punishment?

It is an essential part of punishment, not merely a coincidental outcome, and is imposed in response to wrongdoing.

What are the two main justifications for punishment?

Consequentialist (doing good) and retributive (just desert).

What is the goal of deterrence in the context of punishment?

To prevent future offending by imposing a price for offending.

What factors are considered in specific and general deterrence?

Certainty, severity, and swiftness of punishment.

What does mixed evidence regarding general deterrence suggest?

Certainty of punishment is key, while severity often does not consistently reduce crime.

What is the impact of swiftness in the context of deterrence?

Swiftness is effective, but courts often struggle to implement it.

What is the evidence regarding specific deterrence?

There is limited evidence of effectiveness, as recidivism rates remain high.

How do punitive environments like prisons affect future offending?

They can increase the likelihood of future offending by exposing individuals to criminal subcultures and stigma.

What are some critiques of the deterrence theory?

Overemphasis on rational choice, many crimes are committed impulsively, and a focus on severity rather than certainty.

What ethical concerns arise from general deterrence?

It raises questions about punishing one person to prevent others from offending.

What is the focus of rehabilitation in the context of punishment?

Addressing the underlying causes of criminal behavior to prevent future offending.

What are some individualized treatments used in rehabilitation?

Counseling, education, vocational training, and therapy tailored to the offender's needs.

What are the evidential results of incapacitation compared to prison without treatment?

Positive results when treatment is involved, but poor results when moving from experiment to wider implementation.

What are the challenges faced by rehabilitation programs?

Limited resources, significant funding needs, and debates over voluntary versus mandatory participation.

What is the primary goal of retributive punishment?

To ensure that punishment is proportional to the crime committed.

What does Michael Moore argue about retributivism?

Punishment is justified because offenders deserve it, and society has a duty to punish culpable offenders.

What is the problem of proportionality in punishment?

Difficulty in measuring harm, which is often subjective and varies across cultural and legal contexts.

What are the three main perspectives on punishment according to sociological theories?

Expressive/affirming norms (Durkheim), maintaining class position/control (Marx), and expression of power (Foucault).

What does Durkheim suggest about the emotional aspect of punishment?

Punishment serves as an emotional and ritual expression of shared morals and solidarity within society.

How does crime affect societal sentiments according to the political economy perspective?

Crime offends deeply held sentiments, producing anger and outrage that reinforces moral boundaries.

What is the significance of punishment in social order?

It organizes, orders, and reproduces social structures, having both instrumental and symbolic functions.

What does Nussbaum argue about the desire for proportional punishment?

Desiring the degradation of another is a moral flaw and does not effectively address the harm caused.

What does the term 'conscience collective' refer to in the context of crime?

The fundamental moral code which society holds sacred, which crime offends.

What is the impact of crime on social cohesion?

Crime produces collective emotions that bring society together to condemn and reaffirm moral values.

What societal function does punishment serve according to the text?

Punishment serves to define acts as criminal and to maintain social order.

How are collective values expressed through punishment?

Collective values are asserted and affirmed through rituals of punishment.

What role do courts play in the context of punishment?

Courts act as a rich setting for prosecution, trial, and punishment, serving as a collective ritual that affirms shared social values.

What is the significance of the ritual solemnities of criminal law?

They reflect the community's need for the criminal to be subjected to punitive justice in a dramatic form.

What do Garfinkel and Carlen argue about the court system?

They view the court as a degradation ritual where a deviant identity is constructed.

What is the difference between stigmatic and reintegrative punishment according to Braithwaite?

Stigmatic punishment labels individuals negatively, while reintegrative punishment seeks to reintegrate them into society.

How does Foucault view punishment in relation to economic relations?

Foucault argues that punishment is a tool used by the ruling class to control the working class and protect capitalist interests.

What is meant by 'A tale of two punishments'?

It refers to the contrasting purposes of punishment in capitalist societies, particularly in controlling the behavior of the working class.

What shift in punishment methods is noted from pre-capitalist to capitalist societies?

There is a shift from brutal public punishments to imprisonment and economic sanctions as means of control.

How is imprisonment viewed in terms of economic exploitation?

Imprisonment is seen as a form of economic exploitation, where incarcerated individuals are used as cheap or forced labor.

What do Di Giorgi and Wacquant argue about punishment?

They argue that punishment governs social marginality and reflects neoliberalism and systemic inequalities.

What does Michelle Alexander's 'The New Jim Crow' discuss?

It discusses mass incarceration in the USA as a strategy to control black Americans.

What is the critique of the economic explanation of punishment?

Critics argue it neglects symbolic dimensions and other drivers such as politics, race, and culture.

What is Angela Davis's stance on prisons?

Davis argues that prisons are fundamentally racist and oppressive, advocating for community-based models instead.

What do community-based alternatives to punishment advocate for?

They advocate for mediation, conflict resolution, and social support services rather than punitive measures.

What is the argument against reformist approaches to prisons?

Reforms are seen as legitimizing the existence of prisons rather than challenging their fundamental injustices.

What does decriminalization aim to address?

Decriminalization seeks to reduce harm caused by criminalization of non-violent offenses and societal inequalities.

What is the goal of transformative justice movements?

They focus on addressing root causes of crime and repairing relationships rather than punitive measures.

How does punishment reflect wider systems of oppression?

Punishment is viewed as symptomatic of broader issues related to race, gender, and class inequalities.

What does the concept of the Panopticon illustrate in modern society?

It symbolizes the shift to a society where power operates through constant observation and self-regulation.

What is the significance of the shift from public spectacle to private punishment?

It reflects a transition to more subdued and internalized forms of punishment in modern society.

What does the term 'bio power' refer to in the context of punishment?

Bio power refers to the regulation of populations through various means, including surveillance and discipline.

What are the implications of sentencing factors in relation to power dynamics?

Sentencing reflects an asymmetry of power, where the infliction of pain and suspension of rights is unevenly distributed.

What does the critique of public safety concerns highlight in the context of abolition?

It raises questions about the feasibility and effectiveness of abolishing prisons while ensuring community safety.

What are the multiple dimensions involved in sentencing?

Power, political economy, control, and ritual.

What creates space for resistance in sentencing practices?

Recognition of historical, political, and economic foundations.

What complicates the straightforward nature of sentencing?

A mixture of legal-philosophical justifications and competing interests of state, victim, and offender.

What are the key objectives of sentencing?

Denunciation, retribution, incapacitation, rehabilitation, deterrence, and reparation.

What is meant by 'proportionality' in sentencing?

Determining a fair sentence that reflects the seriousness of the offense.

What does 'parsimony' refer to in the context of sentencing?

Using the minimum necessary sentence to achieve the intended goals.

What is the principle of 'totality' in sentencing?

Ensuring that sentences are not excessively harsh when multiple offenses are involved.

What is the importance of consistency/parity in sentencing?

Similar cases should receive similar sentences to ensure fairness.

What role does judicial discretion play in sentencing?

Judges need discretion to tailor sentences to individual cases.

What types of factors can judges consider in sentencing?

Aggravating factors, mitigating factors, seriousness of the offense, and offender's background.

What is the significance of the offender's conduct in sentencing?

It can influence the severity of the sentence based on cooperation, remorse, or prior behavior.

How does the impact of the offense on victims factor into sentencing?

The age and circumstances of victims can affect the perceived severity of the offense.

What considerations are relevant for Indigenous offenders in sentencing?

Recognition of systemic disadvantages and consideration of alternatives to imprisonment.

What was the outcome of R v Gladue regarding Indigenous sentencing?

Sentencing judges must consider the adverse systemic factors faced by Aboriginal Canadians.

What are common non-custodial sentences?

Financial penalties, probation, and community service.

What does 'populist punitiveness' refer to?

Politicians' tendency to align with public sentiment for harsher sentences.

What is the concept of 'truth in sentencing'?

The practice of ensuring that the sentence imposed is the actual time served.

What is the purpose of the Jury Sentencing Project?

To gather jurors' perspectives on appropriate sentencing practices.

What is the goal of incorporating Indigenous perspectives in sentencing?

To increase Indigenous involvement in court processes and make hearings culturally appropriate.

What is a Circle Court?

A non-adversarial court process that includes Indigenous elders and community members.

What challenges do judges face in Circle Courts?

Balancing multiple factors and ensuring effective communication among all parties.

What is the role of elders in Circle Courts?

Elders may address offenders and participate in determining sentences.

What is the significance of the Nowra Circle Court?

It emphasizes informal communication and community involvement in the sentencing process.

What are the criticisms of new justice practices involving Indigenous communities?

Concerns about tokenism or paternalism in their implementation.

What is the relationship between sentencing and the common law?

The list of factors relevant to sentencing evolves with common law development.